Chapter III
SALE OF STATE ENTERPRISES
Article 15.- Announcing the decisions approving the sale and the registration for the purchase of enterprises
Basing him/herself on the competent level’s decision approving the sale of an enterprise, the director of the enterprise shall announce this to the entire laborers in the enterprise and on the mass media; organize the registration of the enterprise purchasers within 30 days.
Article 16.- Organizing the sale of enterprise by mode of bidding
1. Where there are two or more registrants for the purchase of the enterprise, the sale of enterprise must be conducted by mode of bidding.
2. The person deciding the sale of enterprise shall set up the Bidding Council. The Bidding Council shall notify the purchase registrants of the submission of the application for participation in the bidding, the minimum price level, the deposit level, the time-limit for dossier submission, and publicly announce on the mass media and post up at the enterprise’s office the bidding for sale of the enterprise.
3. The purchasers shall submit applications for the bidding for the purchase of the enterprise according to the form set by the Bidding Council and pay the deposit.
The Bidding Council shall receive the applications and deposit money, make the list of bidders and issue certificates to them.
4. The bidders may go to the enterprise to study the accounting books, the assets inventory and survey the real situation of the enterprise.
5. Thirty days after the notice on application submission, the purchase registrants shall have to send their bids to the Bidding Council.
Such a bid shall include:
a) The application for the purchase of the enterprise (according to set form);
b) The plan on the employment of the laborers working at the enterprise;
c) The projected type of new enterprise;
d) The price over for the purchase of the enterprise.
The bids shall be pay into sealed envelops
6. Five days after the dossier-receiving deadline, the Bidding Council shall send notice on the time and location of the bidding to each bidder. The Bidding Council shall publicly post up the list of bidders at the place of bidding for 2 days before the bids are opened.
7. The bids opening shall be conducted for not more than 01 day as follows:
a) The Bidding Council shall check the seals, publicly open the envelop of each bidder and announce the labor-using plan and the price offer of each bidder for recording them in the minutes; announce the plan on the employment of laborers with the largest number and the highest price offer of each bidder.
b) The chairman of the Bidding Council and bidders shall sign the minutes of the bids opening.
8. Bid evaluation:
a) The Bidding Council shall discuss the labor-using plans and price offers in order to select by voting the bid winner;
b) The Bidding Council shall make a report on the bid evaluation and send it to the Board for Renewal of Enterprise Management and the person who has decided the sale of enterprise.
Article 17.- Organizing the enterprise sale by direct mode
1. The enterprise sale by the direct mode shall apply when there is only one purchase registrant.
2. The purchase registrant shall submit his/her dossiers to the enterprise director or the Board for Renewal of Enterprise Management; the dossier
contents shall comply with the provisions on the cases of enterprise sale by mode of bidding.
3. The enterprise purchase registrant may go to the enterprise to study the accounting books, the assets inventory and survey the real situation of the enterprise.
4. The enterprise director shall report to the Board for Renewal of Enterprise Management so as to discuss directly with the purchaser’s representative about the labor-using plan, the price offer and reach agreements on details in the sale/purchase contract.
The Board for Renewal of Enterprise Management shall send the dossier and the minutes to the person who has decided the enterprise sale.
Article 18.- Responsibilities of the to be-sold enterprise
1. To inventory and determine the quantity of assets available at the enterprise, including fixed assets and long-term investment, moveable assets and short- term investment, rented assets, leased assets, assets kept in custody for other, assets entrusted for sale; to evaluate the real status of such assets and to collect the recoverable debts.
2. To classify the assets available at the enterprise into the following types:
a) Assets that may be further used;
b) Assets that cannot be used any more;
c) Assets created from the reward fund, the welfare fund.
3. To collate and classify debts; make the list of creditors and the payable debt amounts and the list of debtors and the debt amounts to be recovered, with the separation of debts that can be recovered from the debts that cannot be recovered.
4. Make the financial statement up to the time of the enterprise sale.
5. To make the list and classification of the laborers working in the enterprise by the time of deciding the sale of enterprise :
a) The number of laborers entitled to the social insurance policy;
b) The number of laborers who are enjoying the social insurance policy on illness, maternity, labor accidents and occupational diseases;
c) The number of laborers subject to the temporary postponement of the labor contract performance;
d) The number of laborers terminating labor contracts.
e) The number of laborers being still under the labor contracts.
6. To hand over the assets, books and relevant dossiers to the enterprise purchaser under the agreement inscribed in the sale/purchase contract.
Article 19.- The principle for dealing with the assets and finance of the enterprise before its sale
1. Assets not calculated into the enterprise’s value shall be dealt with as follows:
a) Assets which can not be used any longer shall be settled by the level that has decided the sale of enterprise by may of: transfer, cession, liquidation or putting into the purchaser’s custody for not more than 90 days;
b) Assets which are rented, borrowed or kept for others. The enterprise shall have to return them to their owners and liquidate the contracts, or they shall be further rented or kept in custody upon the agreement reached between the enterprise purchaser and the assets owners; the appropriated assets shall be decided by the level that has decided the sale of enterprise;
c) Assets created from the reward fund, the welfare fund. They shall be separately inventoried for transfer to the labor collective;
d) Expenses for the unfinished construction of projects which had been suspended before the time of determining the enterprise’s value shall be settled jointly by the purchaser and the seller in conformity with the interests of each party;
e) Bad debts to be recovered: The level that has decided the sale of enterprise shall freeze the debts, determine the liability therefor and settle them according to the current regimes.
2. The reserves for: the reduction of prices of goods in stock, bad debts, the securities price fall, the exchange rate difference and the undivided profit amounts must be dealt with before determining the sale price of the enterprise.
3. The credit balances in cash of the reward fund and the welfare fund shall be divided for the laborers working at the enterprise before it is sold.
Article 20.- The principles for dealing with the enterprise’s debts
1. The debts to be recovered and to be paid shall be settled by the enterprise. Where the purchaser commits to inherit the recoverable and payable debts, such must be inscribed in the enterprise sale/purchase contract and notify it to the concerned parties.
2. Where the proceeds from the sale of the enterprise is not enough for the payment of the enterprise’s debts, it shall be settled as follows:
a) Writing off all tax debts and State budget debts;
b) The debts owed to the social insurance, banks, enterprises and individuals shall be dealt with according to the specific guidance of the Ministry of Finance.
Article 21. - Dealing with the labor and managerial apparatus of the sold enterprise
1. The enterprise purchaser shall have to take in the laborers according to the labor-using plan committed when buying the enterprise. For the laborers who have voluntarily terminated their labor contracts, the current regimes shall apply.
2. Entitlements regime for laborers shall be as follows:
a) For the laborers eligible for the social insurance regime, the enterprise director and the social insurance agency where the enterprise pays its social insurance premium shall settle the benefits for the laborers according to the current regimes;
b) For cases of labor contract termination, the laborers shall be paid the severance allowances according to the provisions of Article 42 of the Labor Code and the Government’s Decree No.198/CP of December 31, 1994 regarding the time the laborers had previously worked in the State sector but not yet received the severance allowances;
c) For the laborers who continue working at the new enterprise, the enterprise director shall have to proceed with the procedures so that the social insurance agency may issue the insurance books as prescribed and transfer the list and files of the laborers being still under the enterprise’s management to the new enterprise.
3. The enterprise director shall have to pay all social insurance debts (including the amounts to be paid by the laborers) to the social insurance agency where the enterprise pays the social insurance premium as prescribed by law.
Where the proceeds from the sale of the enterprise is not enough for payment of the social insurance debts and the severance allowances to laborers, the deficit amount shall be deducted from the Funds for Support of Restructure and Equitization of State Enterprises for the payment thereof.
4. The director, deputy-directors and chief accountant of the enterprise shall be considered by the level that has decided the sale of enterprise on the case-by-case basis for new postings or for settlement according to the job severance regime.
Managers who have lacked responsibility, thus leading to business losses and the loss of State capital must not hold managerial positions in other State enterprises or State bodies.
5. After the issuance of the decision on the enterprise sale, if a laborer quits or loses his/her job:
a) The new enterprise shall pay the job severance or loss allowances for the period he/she has worked at the new enterprise;
b) For the duration the laborer had previously worked for the State sector but not yet received the allowances for job severance or loss, he/she shall be entitled to enjoy such allowance according to the provisions of law. The source for payment of job severance or loss allowances shall be deducted from the Funds in Support of Restructure and Equitization of State Enterprises or from the State budget.
Article 22.- Principles for determining the sale price of enterprise
1. The sale price of enterprise shall be determined on the basis of:
a) The actual value of the enterprise, accepted by both the purchaser and the seller;
b) The level of price discount for the purchaser when the purchaser commits to make investment so as to maintain the production and business, to provide jobs for the laborers and other conditions a greed upon by the seller.
2. Bases for determining the sale price of the enterprise.
a) For cases of the enterprise purchase with its rights and obligations being inherited:
- The data in the accounting books of the enterprise at the time of sale;
- The actual value of the State capital portion in the enterprise in the time of sale after subtracting the payable debts, which is accepted by the purchaser and the seller.
b) In cases where the enterprise purchaser does not inherit its rights and obligations, the enterprise sale price shall be the actual sale price of all its existing assets, determined on the basis of their current quality state, technical properties, the use requirements of the purchaser and the market price at the time of sale.
3. When determining the actual value of the enterprise, the hiring of audit is not required. For enterprises which have failed to comply with the Ordinance on Accountancy and Statistics, the agency which decide the enterprise sale price shall consider the hiring of the independent auditing organizations to determine the value thereof. The money paid for such audit hiring shall be accounted into the enterprise sale cost.
Article 23.- Approving the sale plans, sale prices, signing the contracts and issuing decisions on sale of State enterprises
Basing themselves on the proposals of the Boards for Renewal of Enterprise Management, the ministers, presidents of the provincial/municipal People’s Committees, Managing Boards of Corporations 91 shall have to do the following:
1. Approving the enterprise sale plans and issuing decisions on the sale of enterprises. Such a decision shall include the following contents:
a) Name and address of the to be-sold enterprise;
b) Name and address of the purchaser;
c) The sale price, mode of selling; the payment mode and time-limit;
d) The time-limit for conclusion of the contract and the sale and hand-over of the enterprise;
e) The responsibilities of the enterprise, the Board for Renewal of Enterprise Management and concerned bodies in dealing with other existing and arising problems.
2. Organizing the signing of contract with the enterprise purchaser. The contract on the purchase of enterprise shall include the following major or contents.
a) Name and address of the to be-sold enterprise, its account number;
b) Name and address of the enterprise purchaser, his/her/its account number (if any);
c) The enterprise sale price;
d) Commitments made buy the purchaser and the seller of the enterprise;
e) Mode of assets transfer, mode of payment for the purchase of enterprise, the time-limit for hand-over of the enterprise;
f) Dealing with arising problems and contractual disputes.
Enclosed with the contract shall be the assets inventory and the evaluation of the as sets status agreed upon by the purchaser and the seller.
Article 24.- Announcing the sale decisions and the termination of operations of State enterprises
Within 15 days after the issuance of the decision on the sale of enterprise, the Board for Renewal of Enterprise Management shall perform the following tasks:
1. Announcing the termination of the State enterprise’s operations on the mass media according to the provisions of law.
2. Sending the enterprise sale decision to:
a) The Central Board for Renewal of Enterprise Management;
b) The enterprise’s finance body;
c) The tax authority;
d) The business registry;
e) The Statistics Department of the locality where the enterprise is headquartered.
3. Paying deposits to bidders (if any).
Article 25.- Hand-over of enterprise
Within the time-limit agreed upon in the contract, the Board for Renewal of Enterprise Management shall organize the hand-over of enterprise to the purchaser.
If the quantity and real status of the enterprise’s handed-over assets are not in line with the assets quantity and real status inscribed in the purchase/sale contract, the purchaser may request the readjustment of the signed contract.
Article 26.- Payment of money for the purchase of enterprise
The enterprise purchaser shall pay within the time limit prescribed in the purchase/sale contract, which, however, must not exceed 3 years after the issuance of the decision on the sale of enterprise.
Article 27. - After-sale business registration for the enterprise
The enterprise purchaser shall have to make the business registration at the business registry of the locality where the enterprise is headquartered (if the purchaser has not yet got the business license) in one of the forms prescribed by the Law on Enterprises or make the additional registration (if the enterprise purchaser has got the business license).
Article 28.- Rights and obligations of the enterprise purchasers
1. They may take initiative in using the purchased assets, selecting the business lines, reorganizing the production, making new investment, replacing the managerial apparatus, deciding the type of enterprise and continuing the land rent according to the provisions of law.
2. In case of continuing to maintain investment in development of the enterprise’s production and business, the purchaser may inherit the enterprise’s interests according to agreement in the enterprise purchase and sale contract as well as the signed economic contracts.
3. They are obliged to make the payment for the enterprise purchase according to the time-limits and conditions inscribed in the enterprise purchase and sale contract; to comply with all conditions and commitments made to the enterprise seller; inherit the enterprise’s obligations according to the contract and the provisions of law.
Article 29.- Inspection and supervision of the fulfillment of contractual commitments
The person deciding the sale of enterprise shall have to organize the supervision and inspection of the fulfillment of commitments in the enterprise purchase and sale contract; deal with or propose the competent State bodies to deal with the violations of contractual commitments by the purchaser according to the provisions of law.
Tìm kiếm
Nghị định 103/1999/NĐ-CP (Bản Word)